Feds decline more than 5,800 criminal cases since McGirt ruling
Federal prosecutors in Oklahoma have declined to file thousands of criminal cases since the Supreme Court’s 2020 McGirt decision swamped U.S. attorney’s offices in the state with new case requests, according to a Tulsa World analysis of prosecution data.
The ruling has had major impacts on two of three federal judicial districts in Oklahoma: the Eastern and Northern districts. In the first full fiscal year after the McGirt ruling, the number of cases not prosecuted in those two districts increased more than 10-fold, going from 336 cases in fiscal year 2020 to 4,084 cases in fiscal year 2021.
In all, 5,847 criminal cases referred to federal prosecutors in the two districts during an 18-month period since the McGirt ruling have not been prosecuted in federal court, according to a Tulsa World analysis of records made available by the Transactional Records Access Clearinghouse at Syracuse University.
The U.S. Supreme Court’s McGirt ruling in July 2020, and subsequent rulings by a state appeals court, established that Congress had never disestablished the reservations of the following eastern Oklahoma tribes: Cherokee, Chickasaw, Choctaw, Muscogee, Quapaw and Seminole.
That means the state of Oklahoma does not have jurisdiction in criminal cases involving tribal members within those six reservations, which cover most of eastern Oklahoma.
The landmark ruling caused a crush of new cases to be filed at the federal level. Initially, many of the new federal cases were filed when state cases were dismissed for jurisdictional reasons.
Northern District
In Tulsa County alone, the District Attorney’s Office had referred 1,056 criminal cases to federal prosecutors since the McGirt ruling through March, according to a spokeswoman.
The rapid increase in cases not prosecuted doesn’t mean federal prosecutors in eastern Oklahoma have not been busy since the McGirt ruling was released. In fact, they have been busy enough to move the national needle on federal prosecutions.
In one month alone — May 2021 — federal prosecutors in Oklahoma accounted for 100 of the 154 criminal prosecutions launched nationwide in federal court, according to TRAC data.
In the federal Northern District of Oklahoma, which includes the city of Tulsa, federal prosecutors received 3,961 cases for consideration during the 18-month period between October 2020 and March 2022, according to TRAC data.
During the same period, Northern District prosecutors filed charges in 1,110 cases. Prior to the McGirt ruling, the most prosecutions filed in one year in the Northern District totaled 372 in fiscal 2019, while in a more typical year about 256 cases were filed, according to TRAC records dating to 1986.
Clint Johnson, U.S. attorney for the Northern District of Oklahoma, said in an interview that most of the cases his office declines to prosecute are referred to tribal courts for consideration.
Johnson said his office has referred 2,212 so-called “Indian Country” cases to various tribal officials for prosecution consideration since the McGirt ruling.
Johnson said the cases referred to tribal officials tend to be lower-level property crimes where the defendant is American Indian, so the tribe has jurisdiction.
Tribal courts generally don’t have jurisdiction over non-American Indians defendants, except in cases of domestic violence.
Some cases were declined for federal prosecution after a state appellate court ruled that the McGirt decision was not retroactive, meaning inmates could not have their state convictions overturned on McGirt grounds if their original appeal had already concluded, Johnson said.
Other declined cases involved evidence problems where a witness may have died or other evidence issues arose, Johnson said.
Eastern District
The federal prosecution trend has been similar, if not more pronounced, in the Muskogee-based Eastern District.
Eastern District referrals jumped from 312 in FY 2020 to 3,130 in FY 2021, according to TRAC records.
And while Eastern District prosecutions more than tripled from FY 2020 to FY 2021, the number not prosecuted jumped more than 2,000%, going from 94 cases in FY 2020 to 2,333 cases in FY 2021.
But determining how many of the cases referred to tribal officials actually were or weren’t prosecuted can be difficult, as there is no central tracking system.
A Muscogee Nation official said the tribe does not track cases by agency origin and could not say how many criminal cases ultimately have not been prosecuted in tribal court since the McGirt ruling.
However, Muscogee Nation Attorney General Geri Wisner said her office is dedicated to bringing justice to tribal victims.
“It is the intention of the Muscogee Nation Office of the Attorney General to prosecute and seek justice on every case that falls within our jurisdiction,” Wisner said. “Since the McGirt ruling, our Nation has made substantial investments to increase capacity throughout our criminal justice system.
“The assumption is that we will prosecute. One exception is in the case of domestic violence where the victim decides not to pursue charges.”
The nation provided several examples to the Tulsa World where tribal charges had been filed after federal prosecutors declined to prosecute.
One case involves Tulsa Police Officer Michael Donovan Bell.
The Nation’s Lighthorse Police officers arrested Bell in April on felony child-abuse allegations filed against him in tribal court. Bell and the alleged infant victim are both American Indians.
The U.S. Attorney’s Office, which has concurrent jurisdiction, declined to file charges against Bell, according to the Muscogee Nation.
Wisner, who assumed the attorney general post in April, said her office will continue to pursue cases with concurrent jurisdiction.
“Because too often, and I’m not saying anything negative or disparaging about our federal partners, but the reality is too often a lot of these cases are not prosecuted. They get declinations, and instead of there being no other jurisdiction, the Muscogee Nation is going to step up,” Wisner said.
Another ruling sought
Asked how many criminal case referrals the Cherokee Nation had received from U.S. attorney’s offices since the McGirt ruling, Cherokee Nation Attorney General Sara Hill provided the following emailed response:
“There is no formal process for ‘referrals’ from the federal government. Each case is different; sometimes a case may come to Cherokee Nation first because a defendant has been arrested by a tribal or state officer on tribal charges. If the facts warrant, we may request that the U.S. Attorney’s Office consider it for prosecution. In these cases, the Nation may, but is not legally required to, dismiss the tribal case once a federal case is filed.
“Other cases are referred directly to the federal government by local or tribal law enforcement (acting under federal law enforcement commissions) and we may file tribal charges if declined by the U.S. Attorney Office or the FBI.
“Still other times, we may anticipate federal charges and still file tribal charges to ensure public safety in the meantime.
“There is a constant stream of communication between tribal, state and federal law enforcement officers and prosecutors as the facts of the case develop. That process of constant communication ultimately results in a decision by one or more of the agencies involved filing a new criminal case, or declining a case.”
An April U.S. Supreme Court filing on behalf of the Five Tribes — the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole nations — indicated that they had collectively filed nearly 13,000 criminal cases in their respective tribal courts.
McGirt decision detractors have assailed what they claim is a trend of non-American Indians victimizing American Indians and getting away with it because cases are not being prosecuted.
Chief among those detractors is Oklahoma Gov. Kevin Stitt, who has called unsuccessfully for McGirt to be overturned or, in the alternative, reduced in scope.
The U.S. Supreme Court is poised to rule next month on the later issue: whether the state of Oklahoma has jurisdiction in Indian Country criminal cases where the suspect is non-native and the victim is a tribal member.
Stitt claims that a favorable ruling is needed to protect American Indians from being victimized by nontribal members.
“The U.S. attorneys are not prosecuting anything if it’s not a massive, massive rape or murder,” Stitt told the Tulsa World Editorial Board in January.
But Johnson said his office intends to begin prosecuting lower-level cases that it has accepted.
“As we work through this process, my prosecutors are going back once they are able to breathe a little bit and start to take care of those cases and then worry about the cases going forward,” Johnson said.
He said his office is accepting cases “with every intent that we are going to prosecute them.” He said there are “just some you have to prioritize based on the type of crime that it is.”
As to complaints from some that property crimes such as vehicle theft are going uninvestigated, Johnson said his office refers those with a tribal suspect to the respective tribal court, while those with a non-American Indian suspect will be prosecuted in federal court.
In cases where the federal government is the only agency that can file a charge, it will do so, Johnson said.
“When we are the only game in town, what I mean by that is we are the only person, the only ones that have jurisdiction,” Johnson said, “we are taking those cases. We are opening those cases, and we are investigating those cases.”
